Smith v ADVFN Plc & Ors

On 25 April 2008 the Senior Master on the Court’s own initiative ordered 37 claims brought by the appellant to be stayed. All of the claims arose out of allegedly defamatory statements made about the appellant on a bulletin board. The Senior Master also ordered that

Until further order, all claims issued in the future by the Claimant are to be stayed after issue, and service is not to be effected and the Central Office shall keep all sealed copies on file.

He further ordered that his order was to be referred to Eady J.

Eady J made an order continuing the stay pending a full hearing. The full hearing took place on 9 June 2008 and judgment was reserved. The judgment was handed down on 25 July 2008 [2008] EWHC 1797 (QB). According to the order the claimant’s application to set aside or vary the stay on these proceedings imposed by order of the Senior Master was dismissed. It is not clear to me whether Eady J intended that the Senior Master’s order that all claims in the future are to be stayed remains in force. It appears from an order dated 13 July 2009 which Mr Smith has recently sent to me and which concerns a claim brought by Mr Smith against Paul Turvey (HQ09X02450), that Master Fontaine (to whom all future claims issued by the appellant are assigned) takes the view that all new claims are to be stayed. I give permission to appeal that part of the Senior Master’s order which stays all claims issued in the future, doing so on the assumption that the order was affirmed or not revoked by Eady J.

At the conclusion of his judgment Eady J also said that he was making a Civil Restraint Order (“CRO”). It was later pointed out to the judge that during the course of the oral hearing he had made it clear that he would not make a CRO. Eady J then delivered a further judgment on 31 July 2008. In that judgment Eady J said that he wished to make it clear “that no Civil Restraint Order was in fact made.”

The appellant sought permission to appeal all of those stays, other than the stay in the case HQ07X03107, ADVFN Plc.That case, which appears as number 1 on the schedule below, is stayed pendingcompliance by Mr Smith with an outstanding costs order.

The application for permission to appeal was refused on paper and listed before me for an oral hearing. The first hearing was adjourned, the appellant having experienced travel difficulties. A further hearing was adjourned because the appellant was unable to attend due to work commitments. At the conclusion of the hearing on 31 March, I ordered the appellant to indicate by letter which of the 21 individuals he wished to proceed against. That letter was received in time. The delay in producing this judgment is regrettable but sorting out the claims has not been easy and I have had to seek some further information from the appellant.

Mr Smith, by letter received in the Civil Appeals Office on 19 June, stated that he wished also to proceed in a further case, Paul Turvey, HQ09X02450 against whom he has now issued a claim. I have already referred to the order of Master Fontaine in that case. Master Fontaine also referred the claim to Eady J for further consideration. That further consideration has not yet (I believe) taken place and in those circumstances I cannot grant permission to appeal. As I have said, I have granted permission to appeal the order relating to all future claims.

I have, with Mr Smith’s help, prepared the following schedule of the cases stayed. The first case in the schedule and the cases which I have emphasised in bold are the only ones which the appellant now wishes to have tried.

As can be seen from the above table, cases numbered by me 2-6, 9-10, 14, 15 and 31 were cases which are no longer active, as Eady J was told (see paragraph 71 of his judgment). Some of these claims involved the Norwich Pharmacal procedure to find the author of allegedly defamatory statements on the bulletin board. The others had been settled with statements made in open court. It is arguable that it was not right to order a stay in cases which were no longer active. The effect of leaving the stay in place might have a detrimental effect on the appellant should a court consider in the future making a CRO or some similar order against the appellant. However, it would be a disproportionate use of the time of the court and of litigants to give permission to appeal to test whether a stay in these cases should have been ordered. The fact that I have recognised that it was arguable that the stays should not have been ordered in these cases should provide sufficient protection to the appellant if the matter becomes relevant in the future, subject to any views expressed by the Full Court.

Given that the appellant now wishes to proceed against only a limited number of the individual defendants, I refuse permission to appeal in the cases involving the other individual defendants.

That leaves the following cases: Macdonald, Byrne, Tuppen, Collins, O’Brien, McIntyre, George Smith and Gourlay. The defendants in this case are said to have published on the ADVFN Plc internet bulletin board material defamatory of the appellant.

McDonald was being managed by Master Fontaine who refused the defendant’s strike out application on October 1 2007 (see paragraph 90 of the judgment of Eady J).

It is necessary to start with the claim against ADVFN Plc. As Eady J said in his judgment (paragraph 3) Mr Parkes QC who appeared for the ADVFN Plc accepted that there was a prima facie case in libel. As I have said, the judge decided to continue the stay until the appellant had complied with the outstanding costs orders. Mr Parkes QC for ADVFN was apparently accepting that there was a prima facie case insofar as at least some of the postings by individuals were concerned.

Eady J concluded that all the cases against individuals were without merit and had no realistic prospects of success. See paragraphs 24-26, 35-36. In paragraphs 37 and 38 he said:

37.

It would surely be a waste of time and money to hear so many applications to strike out when the answer is all too predictable. It is obvious to any casual observer that these Defendants were quite sincere in their beliefs about Mr Smith and his activities. They seem to have felt quite strongly about it. The idea that any of these people was acting in bad faith, and making claims which he knew to be false, is not realistic. The question I have to ask, therefore, is whether it can be right to allow all these time-consuming and potentially costly steps to be taken when the outcome is plainly predictable to anyone with any knowledge of defamation; what is more, in circumstances in which a great many people will be left out of pocket. In the modern climate, and in the light of the overriding objective of the CPR, I cannot believe it is right to let this happen.

38.

Since these cases seem to me to have no realistic prospect of success, I think it is right to keep the stay in place. (Underlining added)

What the judge says in paragraph 38 is to be contrasted with a passage from paragraph 102:

I cannot formally come to a conclusion on either abuse of process or the merits of any actual or prospective defences, since there is no application before me.

But the judge also says in paragraph 108:

It does seem to me appropriate to characterise these claims as totally without merit. I will therefore make an extended civil restraint order, which means that Mr Smith cannot launch any further libel proceedings arising out of the Langbar matter based upon bulletin board blogs without obtaining my written permission. Meanwhile, the stays in respect of the individual claims will remain in place.

I have already said that the extended civil restraint order was later revoked when, on 31 July 2008, Eady J said that he wished to make it clear “that no Civil Restraint Order was in fact made.”

It is, in my view, arguable that the conclusion that the cases had no realistic prospect of success is inconsistent with the concession that the case against ADVFN should proceed. It is arguable that the judge ought not to have concluded that the cases had no realistic prospect of success given that there were no applications to strike out and given, in Macdonald’s cases, that Master Fontaine had refused to strike out the claim against Macdonald and that the decision had not been appealed. It is further arguable that if the judge had not concluded that the cases had no realistic prospect of success, then he might not have continued the stays.

Mr Smith asks me to order that he may serve the papers for the appeal in PDF format rather in hard copies and that he should be permitted to redact in the appeal papers the names of persons who have supported him. I refuse both applications. As to the second of these two applications, to the extent to which the appellant wishes and is entitled for the purposes of the appeal hearing to rely on what those persons have said, he cannot redact their names.

In conclusion I grant leave to appeal in the cases of MacdonaldHQ07X02620, Byrne HQ07X03106, Tuppen HQ08X00135, Collins HQ08X01190, O’Brien HQ08X01192, McIntyre, HQ08X01193, George Smith HQ08X01262 and Gourlay HQ08X01584. I also grant leave to appeal what I am assuming to be the decision by Eady J to leave in place the order of the Senior Master that all further claims issued by the appellant should be stayed.

I have warned the appellant that, if he were to fail, he is likely to have to pay costs. I have only given that warning because the appellant is a litigant in person.